The FOI Advisory Council headed into the late-summer heat with its first meetings of the subcommittees appointed at the June 12 meeting.
On July 27, a subcommittee chaired by Councilmember Craig Fifer, examined the so-called “Fifth Response” to be added to the list of proper responses that can be made to a request for records under FOIA.
Currently, the act says that when presented with a request for records, the records custodian must make one of four responses within five working days: (1) that the records will be provided in full; (2) that the records will be withheld in full; (3) that some of the records will be released and some will be withheld (or some parts of the records will be redacted); or (4) that the custodian needs seven more working days to fulfill a request.
The problem was that sometimes the request asked for records that didn’t actually exist, or that weren’t kept by the entity of whom the request was made, and some less-than-motivated records custodians took that situation as an opportunity to say, “Hey, I don’t have these records, so I don’t have to respond to that request!”
Many a requester remained baffled as request after request went unanswered. Understandably, they often felt they were being ignored, stonewalled or even lied to.
FOI Advisory Council Executive Director Maria Everett has counseled governments to use “common courtesy” (and common sense) and just tell requesters why the request won’t be filled. But because common courtesy and sense are often left by the wayside in a busy bureaucracy, a legislative fix was proposed.
Fifer, Alexandria’s IT director, was joined on the subcommittee by fellow council members Stewart Bryan of Media General and Courtney Malveaux from the Attorney General’s office (Malveaux replaced Tom Moncure on the council in June). Subcommittee member Del. Morgan Griffin, R-Salem, was not there.
Together with Councilmember Mary Yancey Spencer of the Virginia State Bar, the subcommittee hammered out a proposed draft to present to the council as a whole and, if approved there, to present to the General Assembly in 2007.
As proposed, the records will now be provided in full or one of four responses is required. Either the records are being denied in full or in part, or the custodian needs more time, or the government could say, “The requested records could not be found or do not exist.”
The section also adds an affirmative duty to would-be users of this response to tell the requester where the records can be found.
Though the draft was crafted with the help of representatives from the ACLU, VDOT, the Virginia Association of Counties, the Virginia Press Association and the Virginia Coalition for Open Government, there was near-universal trepidation that an unknown can of worms might be cracked open with the advent of the new response. That caution caused the subcommittee to scale back on a more dramatic alteration of the whole response section and instead focused on the more narrow issue of records that do not exist or cannot be found.
Two other subcommittees met in August. One on the use of electronic meetings by regional or local entities, was a continuation of a 2005 subcommittee on the same topic. The committee is chaired by John Edwards, editor of the Smithfield Times, and includes council members Roger Wiley, E. M. Miller, Sen. Edd Houck, D-Spotsylvania, Bryan, Fifer and Spencer.
At an Aug. 9 meeting attended by more than 25 people, the committee decided in concept to: (1) reduce the number of days needed for notice of an electronic meeting; (2) allow regional commissions or authorities of a certain size to use electronic meetings; and (3) to provide a mechanism allowing someone who has planned to be at the meeting but can’t due to an emergency.
The third point would include elements of a public body’s confirmation that an emergency situation in fact exists; would limit the number of times any one member could claim to have an emergency; and would limit the number of members within one public body who are claiming an emergency in a single meeting.
Despite a concerted push from the State Council of Higher Education for Virginia, there was no consensus on whether to relax requirements that a quorum be physically assembled in one location.
The third subcommittee further wrestled with the Public-Private Education Facilities and Infrastructure Act and the Public-Private Transportation Act (PPEA/PPTA). A PPEA/PPTA Guidelines Workgroup has been holding parallel meetings for the past year. Both are working on setting clearer guidelines for when and how information must be released to the public when a government embarks on a public-private relationship to build roads or schools in Virginia (see front-page story for more).
The subcommittee is chaired by Bill Axselle and includes council members Houck, Edwards and Wiley. At an Aug. 9 meeting, Axselle said VDOT had the burden to demonstrate its need for confidentiality for internal documents dealing with multi-phase highway construction projects.
According to a VDOT spokesman, the department needs to protect its bargaining position for these “mega deals” that stretch over many years.
Access advocates questioned the fairness of withholding first-phase evaluation studies after the first contract is signed, leaving losing bidders and the public in the dark about internal criteria — criteria that could give the winning contractor an advantage for all subsequent phases.
The electronic meetings subcommittee will meet again Aug. 23, and the PPEA/PPTA group will meet in late August.